Citation Nr: 0007937
Decision Date: 03/23/00 Archive Date: 03/28/00
DOCKET NO. 97-15 543 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an increased rating for eczematoid dermatitis,
also diagnosed as neurodermatitis, currently evaluated as 30
percent disabling.
REPRESENTATION
Appellant represented by: South Carolina Department of
Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Todd R. Vollmers, Associate Counsel
INTRODUCTION
The veteran had active service from August 1957 to February
1960.
This case came before the Board of Veterans' Appeals (Board)
on appeal from a decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Columbia, South
Carolina, in December 1996 that denied an increased rating
for the veteran's service-connected eczematoid dermatitis.
This case was previously Remanded for further development in
July 1998 and April 1999.
REMAND
The Department of Veterans Affairs (VA) has a duty to assist
the appellant in the development of facts pertaining to his
claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R.
§ 3.103(a) (1999). The United States Court of Appeals for
Veterans Claims (Court) has held that the duty to assist the
appellant in obtaining and developing available facts and
evidence to support his claim includes obtaining medical
records to which he has referred and obtaining adequate VA
examinations. The Court also stated that the Board must make
a determination as to the adequacy of the record. Littke v.
Derwinski, 1 Vet. App. 90 (1990).
This case was Remanded in April 1999 for further development,
to include a VA examination. The examiner was requested to
specifically address (a) whether or not there are any
systemic or nervous manifestations of the veteran's skin
condition, (b) the extent of any ulceration or exfoliation or
crusting, (c) any odor produced by the skin condition and,
(d) the examiner's assessment as to the extent of
disfigurement caused by the skin condition. The Board notes
that the veteran was given a VA examination in July 1999,
during which he reported the presence of some odor-producing
cysts. However, the examiner did not comment on whether or
not there was an odor produced by the veteran's skin
condition, or whether or not there were any systemic or
nervous manifestations of the veteran's skin condition. The
examiner also did not give a clear statement as to the extent
of disfigurement caused by the veteran's skin condition. The
opinion included in the July 1999 VA examination does not
sufficiently address the questions requested on Remand, and
another VA examination is therefore necessary.
The United States Court of Appeals for Veterans Claims
(Court) has indicated that a remand by the Board confers on
the veteran, as a matter of law, the right to compliance with
the remand orders. The Court further indicated that it
constitutes error on the part of the Board to fail to insure
compliance. Stegall v. West, 11 Vet. App. 268 (1998).
Accordingly, this case is again REMANDED for the following
additional actions:
1. The RO should request copies of up-
to-date records from the VAMC, Augusta,
Georgia concerning treatment the veteran
has received for his service-connected
skin disability since July 1999. All
records so received should be associated
with the claims folder.
2. Thereafter the RO should schedule the
veteran for a special skin examination in
order to ascertain the nature and
severity of the service connected skin
condition. The claims folder must be
made available to and be reviewed by the
examiner in conjunction with the
examination. The examiner's report
should describe in detail the veteran's
current complaints and pertinent clinical
findings, specifically addressing (a)
whether or not there are any systemic or
nervous manifestations of the veteran's
skin condition, (b) the extent of any
ulceration or exfoliation or crusting,
(c) any odor produced by the skin
condition and, (d) the examiner's
assessment as to the extent of
disfigurement caused by the skin
condition.
3. Following completion of the
foregoing, the RO must review the claims
folder to ensure that all of the
requested development has been completed.
Any incomplete development should be
remedied by appropriate corrective
action.
4. Thereafter, the RO should again
consider the veteran's claim. If action
taken remains adverse to the veteran, he
and his accredited representative should
be furnished with a supplemental
statement of the case concerning all
additional evidence, and they should be
given an opportunity to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The appellant need take no
action until otherwise notified, but has the right to submit
additional evidence and argument on the matter or matters the
Board has remanded to the regional office. Kutscherousky v.
West, 12 Vet. App. 369 (1999). The purpose of this REMAND is
to ensure due process of law. No inference should be drawn
regarding the final disposition of the claim as a result of
this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
C. W. Symanski
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1999).